Citation Nr: 1043219
Decision Date: 11/17/10 Archive Date: 11/24/10
DOCKET NO. 09-08 517 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North Little
Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to service
connection for a chronic low back disability (claimed as
residuals of an in-service back injury).
2. Entitlement to service connection for chronic athlete's foot.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran served on active duty from July 1980 to June 1982.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from an April 2008 rating decision by the North Little
Rock, Arkansas, Regional Office (RO) of the Department of
Veterans Affairs (VA) which, inter alia, denied the Veteran's
application to reopen his previously denied claim of entitlement
to service connection for a chronic low back disability for
failure to submit new and material evidence, and also denied his
claim of entitlement to service connection for chronic athlete's
foot.
The Veteran appeared at the RO to present oral testimony and
submit evidence in support of his appeal before the undersigned
Veterans Law Judge at a November 2009 videoconference hearing.
The transcript of this hearing has been obtained and associated
with the Veteran's claims file for consideration by the Board.
For the reasons that will be further discussed below, the appeal
is REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, D.C. VA will notify the appellant if further action
is required on his part.
REMAND
At his videoconference hearing before the Board in November 2009,
the Veteran reported receiving treatment on several occasions at
the Little Rock VA Medical Center for low back pain, most
recently in or around October 2009. These treatments at VA
included an emergency room visit and the Veteran also stated that
during one treatment session, the treating physician presented a
positive nexus opinion linking the Veteran's current back
disability to military service. At the same hearing, the Veteran
also reported receiving treatment at the Little Rock VA Medical
Center for complaints relating to chronic athlete's foot
approximately one year earlier (i.e., November 2008). A review
of the claims file, however, does not indicate that the records
pertaining to these reported treatments have been associated with
the claims folder. As such VA records are expressly reported by
the appellant as being relevant to his claim, the case must be
remanded so that these outstanding records may be obtained. (See
Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990); Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991): VA's duty to assist
encompasses, at the minimum, searching for records in the
possession of VA.)
The Board further notes that at his November 2009 videoconference
hearing, the Veteran reported to the undersigned Veterans Law
Judge that he had several documents from his employer relating to
his having to take time off from work on several occasions
because of his back disability. He expressly refused to waive
his right to have the RO, as agency of original jurisdiction over
the current appeal, consider these records in the first instance
with regard to his application to reopen his back disability
claim. However, a review of the claims file shows that these
employer documents have not been associated with the evidence.
On remand, the Veteran should be asked to submit these records
for inclusion in his claims file so that the RO may consider them
in its readjudication of his claim. (See Moore v. Derwinski, 2
Vet. App. 375, 376 (1992); Gross v. Derwinski, 2 Vet. App. 551,
552 (1992): When a claimant brings VA's attention to the
existence of relevant medical evidence not already associated
with the record, VA's duty to assist is triggered and it must
undertake efforts to attempt to locate and obtain such records.)
Accordingly, in view of the foregoing discussion, the case is
REMANDED to the RO via the AMC for the following action:
1. Copies of updated treatment records, VA
and non-VA, should be obtained and added to
the claims folder. These records should
include, but are not limited to, those
pertaining to his reported treatments for low
back complaints (including VA treatment in
approximately October 2009 and also an
emergency room visit at the Little Rock VA
Medical Center) and athlete's foot (including
VA treatment approximately in November 2008),
as well as his employer's records regarding
time lost on account of his low back
disability which he did not submit at his
November 2009 Board hearing.
If the RO is unable to obtain any of the
records identified above, the reasons
explaining VA's inability to obtain them
should be so stated.
2. After completing the above action and any
other development as may be indicated by any
response received as a consequence of the
actions taken in the paragraphs above, the
issues of entitlement to service connection
for athlete's foot and whether new and
material evidence was submitted to reopen a
previously denied claim for service
connection for a chronic low back disability
should be readjudicated following review of
all relevant evidence associated with the
claims file. If the appeal remains denied
with respect to any of these issues, a
supplemental statement of the case should be
provided to the Veteran and, if appropriate,
his representative. After the Veteran has
had an adequate opportunity to respond, the
issue or issues remaining on appeal should be
returned to the Board for further appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
(CONTINUED ON NEXT PAGE)
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).